1997 PLP 1599 (CLC)

6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedent case. This Tribunal could invoke the powers under section 76‑A of Act 1976 only in the cases where on the basis of some material or an information it was of the opinion that returned candidate was a defaulter of loan, taxes, Government dues or utility charges, or has submitted a false or incorrect declaration regarding the payment of loans, taxes, Government dues or utility charges under section 12 of Act of 1976. The allegations, as noted above, do not make out a case for exercise of suo motu jurisdiction under section 76‑A of Act 1976, as added by Ordinance XVIII of 1997.

7. Now coming to the preliminary objection that the Ordinance XVIII of 1997 has lapsed, therefore, this Court has no suo motu jurisdiction and the petition is liable to be dismissed on this short ground alone. The power of the President to promulgate Ordinance is subject‑matter of Article 89 of Constitution of 1973. The same reads as under:‑ "89.‑‑‑(1) The President, may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. (2) .An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis‑e‑Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis‑e‑Shoora (Parliament) to make law, but every such Ordinance:‑‑ (a)??????? shall be laid‑‑‑ (i)???????? before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall stand repealed at the expit`ation of four months from its promulgation or, if before the expiration of.that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; (ii)??????? before both Houses if it does not contain provisions dealing with any of the matters referred to in sub‑paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and (b)??????? may be withdrawn at any'time by the President. (3)??????? Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill. introduced in the National Assembly." It is clear from the above Article that if President was satisfied that circumstances *existed which warranted immediate action and the National the President could promulgate an Ordinance. The same, if it is a money bill, shall be laid before the National Assembly and shall stand repealed'on expiration of four months from its promulgation or before the .expiration of this period with the passing of a resolution of disapproval by the.National Assembly. While other Ordinances shall stand repealed on the expiration of four months from its promulgation or if before the expiration a resoldtion of disapproval is passed by either of the two Houses of the Parliament.. '1 `he Ordinance XVIII was promulgated on 31‑1‑1997. The same has "not been ` passed by the Parliament so far, therefore, ‑in view of sub Article 2(a)(i) of Article 89 of Constitution of 1973 it expired on 3:1‑5‑1997. he power pf the Tribunal to pass orders suo motu came to an end with its expiry.

8. The learned counsel for the petitioner argued that once a law is enacted then its repeal shall not effect the continuation of any such amendment made by the enactment so repeated. He in this behalf has referred to section 6‑A of General Clauses Act and relied on the judgment in the case of Zia Ullah Khan and 2 others (1992 SCMR 602), which if gone through minutely, would support the other view. It was clearly held by the Hon'ble Supreme Court in the precedent case that provisions of section 6‑A of the General Clauses Act were not available for the interpretation of the Constitution. On the other hand, the matter would be governed by Article 264 of Constitution of 1973, which inter alia, provided that where law was repealed or was deemed to have been repealed, by, under, or by virtue of Constitution, the repeal shall not except as otherwise provided by the Constitution, affect the previous operation of law or anything duly done or suffered under the law. Mr. Justice Ajmal Mian, the learned author of the leading judgment in this case, compared both the provisions and held as under:‑ "

11. It may be mentioned that since there is no corresponding provision in the Constitution, the General Clauses Act cannot be pressed into service in the instant case, as has been rightly conceded by Mr. Irfan Qadir. However, his submission was that the above clause (b) of Article 264 of the Constitution can be equated with section 6‑A of the General Clauses Act. In our view the above contention is not tenable as in fact, section 6 of the General Clauses Act, and not its section 6‑A, is couched in terms of Article 264 of the Constitution, which is evident, if we were to place the above two provisions in juxtaposition." The Hon'ble Supreme Court in the case of Mahreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397) held that the Ordinance C is essentially in nature of temporary legislation and its future operation is made conditional to approval of the Assembly. I am fortified in my view by the judgment of this Court in the case of The State v. Muhammad Sharif (PLD 1960 Lahore 236). The relevant portion reads as under:‑ "9???????? When a temporary statute repeals a permanent statute, the repeal remains effective only till the life of the temporary statute and when the temporary statute expires, the permanent statute again emerges ?????????? " This view was confirmed by the Hon'ble Supreme Court in its judgment in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another (PLD 1995 SC 66), suffice it is to refer here following para of the judgment of Mr. Justice Saiduzzaman Siddiqui:‑ ' "In view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its Promulgation in accordance with the provision of Article 89 (ibid), the amendment introduced in section 8‑B by Ordinance XXX of 1993 stood removed from the statute book with the consequence the original provisions of section 8‑B of the Act stood revived on such repeal. Therefore, the original section 8‑B was enforced both at the time the two references were filed before the Election Commission and the present appeals were filed before this Court. The appeals, accordingly, were competently filed before this Court under sub‑clause (3) of section 8‑B of the Act. (Note:‑ The underlining is by me.). Earlier to this reference was made to observations of Privy Council in the case of Gooderham and Worts Ltd. v. Canadian Broadcasting Corporation (AIR 1949 PC 90). The relevant portion of that judgment reads as under: The repeal effected by the legislation was only a temporary repeal. When by the fiat of Parliament the temporary repeal expired the original legislation automatically resumed its full force ? 9.???????? The Ordinance ' XVIII of 1997 has since expired on 31‑5‑1997, 1 therefore, section 76‑A of Act 1976 would not be deemed part of the statute book. This Tribunal ceased to possess suo motu powers to call upon respondent p No.2, returned candidate, to show cause why his election should not be declared void.

10. The upshot of the above discussion is that the request to take action in suo Motu jurisdiction is declined. A.A./M‑379/L???????????????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.